How far does the right to ‘private life’ go? Noel Conway, who has motor neurone disease, feels that his inability to arrange an assisted death without fear of his ‘assistant’ being prosecuted, is an intrusion on his right to private life. He is barred from taking steps to manage his death in the way he would like. Additionally, his team will argue that the current law results in someone with severe physical disability such as his being discriminate aganist. Thus, he proposes that two articles of the European Convention of Human Rights (ECHR), 8 and 12, are contravened by the 1961 Suicide Act.

Article 8 has been examined in relation to end of life issues several times over the last few years. Most recently, the Janet Tracey case touched on it from a quite different direction – was her right to private life infringed by medical staff who did not engage her in discussion about a DNACPR notice?

It is interesting to look at the Tracey judges’ reasoning in the light cast by Noel Conway’s situation – a legally dubious exercise I am sure, but possibly helpful in view of the fact that our legal process relies on precedent.

Firstly, do DNACPR decisions have anything at all to do with assisted dying (AD)? I would say yes, insofar as discussions and decisions around CPR relate to what goes on in the last hours or minutes of life. They relate to patients wishes as regards dignity, and how their body is physically handled. They reflect a patient’s attitude to mortality, and whether they feel ready to die without final, heroic measures (of course, we know that the CPR decision does not ultimately rest in the patient’s hands, but their view on it remains of paramount importance).

The judges* in the Tracey case thought so too, for they invoked the case of Diane Pretty (see below), confirming that from a legal perspective there is a degree of overlap,

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The judges begin by setting out the case against the medics (embodied in this instance by the ‘secretary of state’ [SoS]);

The claim as now advanced against the Secretary of State is that he breached Mrs Tracey’s article 8 rights by failing to publish national guidance to ensure (i) that the process of making DNACPR decisions is sufficiently clear, accessible and foreseeable and (ii) that persons in the position of Mrs Tracey have the right (a) to be involved in discussions and decisions about DNACPR and (b) to be given information to enable them so to be involved, including the right to seek a second opinion.

The Tracey case was about consultation, what was said (or not said), rather than about what was done or not done. So in this regard, extrapolating to Noel Conway’s situation is of limited value. However, the judges are sympathetic to the barrister who is presenting the case against the SoS;

Mr Havers QC submits that article 8 is engaged by a DNACPR decision because it concerns how an individual chooses to pass the closing days and moments of her life and how she manages her death: see Pretty v UK (2002)

And,

It is a decision which concerns a patient’s personal autonomy, integrity, dignity and quality of life.

They seem to accept that Article 8 is highly relevant to end of life scenarios.

Then the view of the opposing barrister Mr Sachdeva, is explored,

He submits that it is not sufficient to say that article 8 is engaged simply because the decision which is under consideration impacts on the physical integrity and autonomy of an individual. But he has been unable to identify the criteria by which to determine whether article 8 is engaged by the withholding of medical treatment.

But this is rejected in a powerful paragraph from the judges,

In [our] judgment, however, none of Mr Sachdeva’s submissions justifies the conclusion that article 8 is not engaged by a decision to impose a DNACPR notice. A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life. If there were any doubt as to that, it has been settled by the decision in Pretty.

We know that Diane Pretty failed in her attempts to prove that a right to choose death was not the same as a right to private life – she took it to the House of Lords and the European Court of Human Rights.

– – Mrs Pretty’s lawyers based their arguments on the most important rights in the [European Human Rights] Convention: the right to life, the right to be protected from inhumane treatment, and the rights to privacy and freedom of thought and belief. They argued that these rights give Mrs Pretty the right to choose when and how to die. The grounds they put forward were, first, that a right to life includes a right to die; second, that if Mrs Pretty is denied the chance to end her life before it becomes intolerable she would in effect thereby be subject to inhumane treatment; and third, that her rights to privacy and freedom of belief give her the autonomy to decide what to do with her own life.

The judges disagreed with all these arguments, saying that they ‘stand the whole purpose of the Convention on its head’ on the grounds that the Convention’s provisions aim at protecting and sustaining life, and that because ‘death is the antithesis of life’ the Convention accords no right to die nor to choose when and how to die. – –

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Back to Tracey; other cases involving successful applications that Article 8 was contravened are covered, including one in which a DNACPR decision was made and diamorphine given [Glass v UK (2004)], and a case where an abortion was requested by a woman who suffered from such bad myopia that she did not think she could cope with the pregnancy. The judges recall that in this case,

The [European Court of Human Rights] also reiterates that “private life” is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world.

Article 8 is therefore seen to extend to aspects of personal identity that are clearly relevant to a person approaching the end of their life.

Evidence from The Equality and Human Rights Commission is then reviewed, which emphasises that any decisions based on the quality or value of life must be led by patients,

Mr Wolfe QC, for The Equality and Human Rights Commission, emphasises the difference between (i) medical issues (such as whether CPR might work) which are matters for the clinicians to decide and (ii) questions relating to the welfare of the patient in the widest sense (including social and psychological issues) which are essentially for the patient to decide. It is for the patient and not for others to say that a life which the patient would regard as worthwhile is not worth living…

Later, the Tracey judges bring the NHS constitution into the argument; it says,

“You have the right to be involved in discussions and decisions about your health and care, including your end of life care, and to be given information to enable you to do this. Where appropriate, this right includes your family and carers.”

Finally, in the ‘OVERALL CONCLUSION’ , they refer to,

…autonomy, integrity, dignity and quality of life of the patient. It is accordingly critical to good patient care. The duty to consult is of course part of a clinical process. That process is individual to each patient albeit that it is informed by good clinical practice.

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We are all interested in how Noel Conway’s case at the High Court goes. In a way, we are all judges, as many of ‘know’, or think we know, what is right already. (This brief and very confident ‘anti-‘ piece in the Spectator is an example; it seems so straighforward to the author!) I worry that this case will go the way of others (most recently that of Tony Nicklinson), with judges concluding that the societal implications of legalising AD are too great, and that parliament, as the natural forum for discussing societal change, must decide. If that is the case, we are unlikely to move forward in the short term.

However, I think this reading of the Tracey judgment shows that Article 8 is intimately relevant to how people wish to be treated as they move towards of the end of their lives.